6.1 Freedom of association concerns the right of all persons to group together voluntarily for a common goal or to form and join an association, such as a political party, a professional or sporting club, a non-government organisation or a trade union.
6.2 This chapter discusses the source and rationale of the common law rights of freedom of association and freedom of assembly; how these rights are protected from statutory encroachment; and when laws that interfere with them may be considered justified, including by reference to the concept of proportionality.
6.3 Freedom of association is closely related to other fundamental freedoms recognised by the common law, including freedom of speech. It has been said to serve the same values as freedom of speech: ‘the self-fulfilment of those participating in the meeting or other form of protest, and the dissemination of ideas and opinions essential to the working of an active democracy’. Freedom of association is different from, but also closely related to, freedom of assembly.
6.4 Freedom of association serves as a vehicle for the exercise of many other civil, cultural, economic, political and social rights. For example, freedom of association is vital to modern commerce and economic wellbeing because partnerships and corporations, which are associations of shareholders, account for much business activity. In practice, many business activities cannot be undertaken by individuals alone.
6.5 Freedom of association provides an important foundation for legislative protection of employment rights. The system of collective, or enterprise bargaining, which informs much of Australia’s employment landscape, relies on the freedom of trade unions and other employee groups to form, meet and support their members.
6.6 Australians are generally free to associate with whomever they like and to assemble to participate in activities including, for example, a protest or demonstration. However, a wide range of Commonwealth laws may be seen as interfering with freedom of association or freedom of assembly, in the contexts of criminal law and counter-terrorism; public assembly; workplace relations; migration; and anti-discrimination. Many of these provisions relate to limitations of these freedoms that have long been recognised by the common law itself, for example, in relation to consorting with criminals, public assembly and other aspects of preserving public order.
6.7 Some areas of particular concern, as evidenced by parliamentary committee materials, submissions and other commentary, involve:
various counter-terrorism offences provided under sch 1 of the Criminal Code Act 1995 (Cth) (Criminal Code) and, in particular, the offence of associating with a member of a terrorist organisation and thereby providing support to it;
workplace relations laws, which are centrally concerned with freedom of association and the right to organise;
the operation of the so-called ‘character test’ in the Migration Act 1958 (Cth), which provides a ministerial discretion to refuse a visa to a person whom the Minister reasonably suspects is a member of or has an association with certain groups or organisations or persons; and
the operation of Commonwealth anti-discrimination laws.
6.8 Counter-terrorism and national security laws, including those mentioned above, should be subject to further review to ensure that the laws do not interfere unjustifiably with freedom of association and freedom of assembly, or other rights and freedoms. Further review on this basis could be conducted by the Independent National Security Legislation Monitor (INSLM) and the Parliamentary Joint Committee on Intelligence and Security (Intelligence Committee).
6.9 Workplace relations laws in Australia have been subject to extensive local and overseas criticism on the basis of lack of compliance with International Labour Organization (ILO) Conventions concerning freedom of association and the right to organise. However, the extent to which obligations under ILO conventions engage the scope of common law or traditional understandings of freedom of association may be contested.
6.10 For example, the legal power to take industrial action is not a common law entitlement but a statutory grant. Therefore, the exercise of the power and the benefit of legal protection may be subject to statutory conditions. While conditions on industrial action may offend certain ILO norms, they do not necessarily encroach on freedom of association.
6.11 The character test in s 501 of the Migration Act may not be a proportionate limitation on the right to freedom of association. The provision might be amended to provide narrower meanings of ‘association’ and ‘membership’. The issue could be dealt with in any future review of Australia’s migration laws aimed at ensuring that these laws do not interfere unjustifiably with freedom of association, or other rights and freedoms.
6.12 Anti-discrimination laws have been criticised for potentially interfering with freedom of association by making unlawful certain forms of discrimination—including the use of rules or criteria excluding people from membership of associations, such as sporting clubs. These concerns overlap with discussion of freedom of religion and are considered in Chapter 5.